In re the Estate of Doyle

McKinstby, J. — A petition for the admission to probate of an instrument as the last will and testament of Michael Doyle, deceased, was presented to the Superior Court by William R. Doyle, named as executor therein.

Richard Doyle, brother of deceased, filed his written opposition to the probate, stating, as ground of opposition, that " the deceased did not make, sign, publish, or declare, as his last will,” the instrument propounded.

No demurrer was interposed to the written opposition, nor was any written answer thereto filed or served.

[566]The Superior Court tried “ the contest,” and decided and adjudged that the instrument offered for probate was the last will and testament of said Michael, deceased; that it was executed in all respects as required by law; that the testator, at the time of its execution, was of sound and disposing mind, and not acting under any undue influence, fraud, or duress; and the court ordered # that the will be admitted to probate.

No appeal was taken from the judgment or order admitting the will to probate. The contestant, Richard Doyle, moved for a new trial of the contest, and has appealed from an order denying his motion.

Section 1312 of the Code of Civil Procedure provides, in effect, that when an opposition is filed and served, the petitioner for probate, or others interested in the estate, may demur to the opposition, or may answer the contestant’s grounds, traversing the same, etc.; and that any issue of fact thus raised must, if requested by either party in writing, be tried by jury; otherwise, by the court.

The petition filed by proponent was sufficient, and' under its averments he would have been authorized to prove (had there been no contest) that the deceased did “ make, sign, publish, and declare, as his last will,” the instrument offered. (Code Civ. Proc., sec. 1308.) The petition, therefore, is to have the same effect as if it had expressly averred that the will offered was made, signed, and published as the last will of the deceased.

There was, then, in the petition, an allegation that the deceased did, and in the opposition an allegation that deceased did not make, sign, and publish the instrument as his last will.